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Distributism and Capitalism: Some contrasting features

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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G. K. Chesterton’s younger brother, Cecil, gave what is probably the most succinct definition of distributism, or rather of a distributist in an article he wrote in 1917.

A Distributist is a man who desires that the means of production should, generally speaking, remain private property, but that their ownership should be so distributed that the determining mass of families – ideally every family – should have an efficient share therein. That is Distributism, and nothing else is Distributism. … Distributism is quite as possible in an industrial or commercial as in an agrarian community. …[1]

This is an excellent definition of the formal economic arrangements of distributism, and moreover it points out the fact that distributism does not require that everyone become a farmer and that it will not hinder the progress of technology, as our critics sometimes assert. But while this definition highlights the structural aspect of well- distributed property ownership, which is the heart of distributism, there is more to distributism than that. For if distributism were simply a rearrangement of who owns what, but to be carried on in the same spirit with which capitalism is carried on, then eventually it would lead to the same economic and social ills that capitalism has produced. Rather, distributism requires a very different approach to mankind’s economic activity, an approach that is focused on providing for our legitimate needs but not on inflaming our fallen appetites for more and more consumer goods.

Capitalism, as Pope Pius XI characterized it in his encyclical Quadragesimo Anno, #100, is the separation of ownership from work. In other words, in a capitalist economy some people own the means of production and hire others to work for them. Now, strictly speaking, as Pius XI points out, there need not be anything unjust about such an arrangement, provided that a just wage is paid and the other stipulations of justice are observed. But in actual practice capitalism has rarely if ever observed the demands of justice. And it is not hard to understand why. An owner of capital has at least three strong temptations to exploit the economic process by turning it away from service to the common good toward merely his own enrichment.

First, since he is not directly the producer of a product, not himself a maker, he tends not to be focused on quality products out of pride of workmanship, but rather on producing by means of his workforce something that will sell. Attention to quality is governed by considerations of expenses versus profits, and even by consideration of possible product liability costs versus profits. In the most extreme form of capitalism, the corporation, most shareholders, although legally owners of the firm, have absolutely nothing to do with what it makes or sells, and hence are interested merely in their dividends or in rising share prices. And in one step even further removed, mutual funds, owners often do not even know what companies their funds invest in, and such investments are often short-term and change rapidly. It is true that in some old-fashioned capitalist enterprises the owner is involved in the business and may have some pride of craftsmanship. But as long as the owner is actively involved in the business, then there is still a distributist element in the firm, however small.

Secondly, because he is chiefly and directly interested in sales, not production of a quality product, if something will sell, that is pretty much the only question he considers. By means of advertising capitalists engage in persuasion to convince people to buy their products. In cases of authentic need, people know they need something and will go to seek it. If they are hungry, they will buy food, if they want something to read, they will buy a book. But advertising attempts to convince people that they need things they had no previous idea they needed. It directly stimulates people’s acquisitive appetites, and thus helps create a society preoccupied with consumer goods.

The third temptation which capitalist enterprise puts before an owner is to withhold justice from his workers. Workers are always a negative item in a capitalist balance sheet, and hence a strong temptation to reduce labor costs by holding down wages, laying off workers, moving jobs overseas, or even replacing the workforce with robots, if that is possible. For a capitalist all these choices can seem entirely rational. And they are all rational according to the logic of capitalism. But they all miss the point with regard to the logic of man’s economic activity, which is not about making unlimited profits for those who happen to hold economic power. If all workers could be replaced by robots, the workers might legitimately ask, Hey what about us? How are we supposed to obtain what’s necessary for us and our families if we are replaced by robots? How are we even supposed to buy what you yourself produce in your factories? But the actual trajectory of capitalism has too often seen workers replaced by machines, laid off, or underpaid, so that they cannot procure what they and their families need.

With distributism, however, while certainly social and economic difficulties would exist, the pathologies fostered by capitalism would be eliminated or at least reduced. A small business owner generally takes pride in his work and his customer service, and sees his craft or trade as more than merely a means of moneymaking. He usually derives from his work more than merely an economic return, for, as John Paul II pointed out in his first social encyclical, Laborem Exercens, the “various actions belonging to the work process…must all serve to realize [the worker’s] humanity, to fulfill the calling to be a person that is his by reason of his very humanity” (#6).

In addition, a distributist economy would not be complete without guilds or occupational groups, whose purpose is to orient economic activity toward fulfilling human needs rather than toward selling products of dubious quality or usefulness. And lastly, the employer\employee divide would be largely done away with under distributism. Larger enterprises would be run as worker cooperatives, and so decisions about automation or new equipment which could potentially replace workers would be made with more than an eye on profits alone. Certainly technological development would continue, but we should note that technology can take more than one direction. When capitalists make the decisions and directly or indirectly determine what kinds of technological research is done, then new inventions will often be of the kind which increase profits by making workers unnecessary. But in a distributist society research will focus on other ways to reduce costs or increase efficiency without necessarily reducing the need for workers – who, after all, will now themselves be the owners.

Because of this altered focus of the economic system, and of the society as a whole, many things that are taken for granted in a capitalist system would hardly exist under distributism. A short time ago I pointed out here why this would be the case with unemployment, certainly one of the perennial scourges of capitalism. In the next part of this article I will take up the subject of business cycles, and show how in a distributist economy their presence and importance would be considerably lessened.

There are many supposed facts of economic life that any student of economics, or even any observer of political and economic news, is familiar with, matters such as unemployment, corporate mergers and acquisitions, labor relations, business cycles, and so on. I call these supposed facts, not because they do not exist, but because their existence is contingent upon man-made economic arrangements, such as laws and tax structures or even cultural norms. Contrary to the impression one takes from writings both of professional economists as well as from journalists, these things and events are not natural and necessary facts like the changing of the seasons or the daily rising of the sun. They need not exist, certainly at least not to the extent that they do in a capitalist economy. Let us take one of the items from the above list, business cycles, and consider it more carefully.

What are business cycles? “A business cycle is a swing in total national output, income, and employment, usually lasting for a period of 2 to 10 years, marked by widespread expansion or contraction in most sectors of the economy,” is how the economist Paul Samuelson defines business cycles in his macroeconomics textbook.[2] Although everyone living in a capitalist economy is familiar with such cycles, or their effects, one might wonder why, apart from the special and external factors I will note below, such cycles exist. Consumer demand for necessary and reasonable goods normally will not fluctuate much – demand for food, clothing, housing, books and the like. Nor will the size of the workforce, and hence of the economy’s ability to provide consumer goods, usually experience short-term major decreases or increases. Thus there is no reason to expect the two most important factors in moving an economy, demand and the ability to supply that demand, to change significantly in a short period of time. Of course, external factors, such as famines, natural disasters, wars, migrations, and so on can cause a sudden and large increase or decrease in either demand or the capacity to supply that demand. As such, a distributist economy will be as subject to such external dislocations as is a capitalist economy. They are simply an inescapable part of life on this earth. But there are other factors which are peculiar to capitalism which have caused probably the majority of business cycles, at least the majority of those which have occurred in recent decades.

Capitalism is fueled by an imperative of production for the sake of sales, regardless of consumers’ needs or of their spontaneous desires for the goods or services in question. As such, it always rests upon foundations which are liable to be shaken. Distributism, on the other hand, rests upon the solid foundation of human nature and its natural needs and reasonable desires. But capitalist demand, which is usually artificially stimulated by advertising, is necessarily fickle or fragile. The artificial desire for larger and larger houses or cars, for example, tends to drive up prices of those goods, and can lead to so-called bubbles in which prices rise exponentially. Eventually these bubbles will burst. Such extreme up and down movements of prices can cause numerous related economic dislocations, such as panics or depressions, which are simply instances of severe business cycles.

History is marked by bubbles in which speculative prices were driven up far beyond their intrinsic value…. Speculative bubbles always produce crashes and sometimes lead to economic panics.[3]

In addition, although criminal greed is a characteristic of postlapsarian mankind in general, it is capitalism that has institutionalized such greed, and even praised and rewarded it. So, for example, exploitative or risky financial practices by banks are not always illegal, and even when illegal, those engaging in such practices often go unpunished or lightly punished because of the overall climate of opinion in a capitalist society, which tends to take a benign view of economic misdeeds. In the Middle Ages in Europe usurers were popularly regarded as among the most heinous of sinners, and this popular judgment was based on the teachings of society’s intellectual elite, theologians, canon lawyers, philosophers and so on. The popular climate of opinion in contemporary America, on the other hand, reserves whatever moral animus it still has for other types of misdeeds, and too often among Christians believers it is only sins against the 6th or 9th commandments which are seen as really worthy of condemnation. All this is the result of the pervasive commercial mentality which affects most Americans.

The point of all this is that the natural end of mankind’s economic activity is to supply our necessary and reasonable need for external goods and services. This is why God has given us the capacity to engage in economic activity. Given the fallen state of mankind, however, it is usually necessary to erect laws and institutions to guide our conduct toward its intended end. This distributism seeks to do in the economic realm. Capitalism, on the other hand, not only has done away with the safeguards against economic misdeeds which the Catholic civilization of an earlier age set up, but suffers from an inherent tendency toward economic exploitation and dislocation. And the commercial cultural climate which capitalism has produced fails to understand that any other way of carrying on economic activity is possible or feasible. But this is not the case. Catholics, in particular, who have a developed critique of economic conduct available in the Church’s social teaching, have an especially grave responsibility to form their thinking according to this teaching. Capitalism is not inevitable. There are other real possibilities. It is chiefly a matter of our having the will to bring about the changes that are necessary in our economic activity. But it can be done.

Notes:
1: Shaw and My Neighbour’s Chimney,” The New Witness, May 3, 1917, p. 13.

2: Macroeconomics, 16th ed., 1998, p. 125.

3: Ibid., p. 177.

You can find the original publications here and here.

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Why Unemployment is a Pseudoproblem

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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Unemployment a pseudoproblem? By calling it that, I do not mean that unemployment does not exist, or that it is not a very serious concern for the unemployed, their families and for society as a whole. What I mean and will argue here is that unemployment is not something natural to economic life, but is a problem created almost entirely by the capitalist arrangement of our economy, one that would largely disappear under a distributist economy, and that is taken for granted by the academic discipline of economics only because that discipline has long been captive to the ideology of capitalism.

The study of economics, especially in its neoclassical and Austrian forms, developed as a theoretical elaboration of capitalism and industrialism as they came to maturity in Europe in the 18th century and afterwards. Most often economic thought has not only assumed capitalism, but has been a mouthpiece for capitalism, in fact, a sophisticated attempt to provide a justification for the disparity in incomes and for the social dislocations that are such notable characteristics of the capitalist world. In face of this complex structure of thought, it can be helpful to return to the basics of human behavior upon which economic life is based in order to discover a different and more accurate way of conceptualizing mankind’s economic activity.

Let us first look at the three different types of economic unemployment as these are enumerated and acknowledged by economists.[1] First, and of little importance for our discussion, there is voluntary or otherwise short-term unemployment of people between jobs, between school and a job, and so on. This is sometimes referred to by economists as frictional unemployment. If the other two types of unemployment are eliminated or reduced, this type will be of little concern.

Then there is what economists call structural unemployment, which Paul Samuelson describes as

a mismatch between the supply of and the demand for workers. Mismatches can occur because the demand for one kind of labor is rising while the demand for another kind is falling, and supplies do not quickly adjust…. [For example], the demand for coal miners has been depressed for decades because of the lack of geographical mobility of labor and capital: unemployment rates in coal-mining communities remain high today.

Thirdly, there is cyclical unemployment, which Samuelson explains as occurring “when the overall demand for labor is low. As total spending and output fall, unemployment rises virtually everywhere.”[2]

These latter two types of unemployment require separate discussion. First let us look at the question of structural unemployment. It arises chiefly because of new technology or on account of some external cause, such as, in the case of coal miners, heightened concern about air pollution. The former cause, new technology, is the more common occurrence. In an economy dominated by capitalists, people who own the means of production, new technology presents an opportunity for higher profits achieved via lower costs. A new or improved device makes a certain number of workers unnecessary. Since labor is a cost item in a capitalist’s balance sheet, there is rarely any conflict in the capitalist’s mind about what to do: if he can save money by eliminating workers and buying machines he will do so. But in a distributist economy this would not be such an open and shut decision. When workers themselves control the enterprises in which they work, either individually or cooperatively, there are other considerations besides merely increased profits. New technology can and will be adopted, but its adoption will be balanced against other equally important economic and social needs, job and family security, social stability, and the like.

Moreover, we should recognize that technology can develop in many ways, and that replacing men by machines is not the only way to secure improved production. In any case, if we remember that the economy is an important but subordinate part of human social life, we will not regard technological improvements as the summum bonum. Right now, with capitalists mostly calling the shots in the economy, their view usually prevails, and what we like to call economic efficiency wins against any of the human concerns and needs that an economy is supposedly subservient to. If an economy could do without workers altogether and produce more cheaply and quickly solely by means of robots, would this really be a benefit to mankind? Would not the fact that the now unemployed workers could no longer afford to buy any of the robot-produced goods signify that such an economy had entirely inverted means and ends?

What if technological advances across the board make it possible for our consumption needs to be supplied by merely a portion of the labor force? The obvious answer to that is, if it is no longer necessary for everyone to work eight hours to supply mankind’s needs, let everyone work a little or a lot less, enough so that mankind’s needs are taken care of. If this can be done with everyone working six hours instead of eight, well and good. Here, though, we run into one of the shibboleths of neoclassical economics, the so-called “lump of labor fallacy.” Samuelson explains this notion as follows:

Whenever unemployment is high, people often think that the solution lies in spreading existing work more evenly among the labor force. For example, Europe in the 1990s suffered extremely high unemployment, and many labor leaders and politicians suggested that the solution was to reduce the workweek so that the same number of hours would be worked by all the workers. This view – that the amount of work to be done is fixed – is called the lump of labor fallacy.

What is wrong with this idea, according to Samuelson?

[T]he lump of labor argument implies that there is only so much remunerative work to be done…. A careful examination of economic history…shows that an increase in labor supply can be accommodated by higher employment, although that increase may require lower real wages.[3]

What is one to make of this argument? If we examine it, Samuelson appears to mean that if workers are willing to work for lower wages, some capitalist will employ them to produce something that he thinks he can sell, and thus absorb the unemployed workers. This is no doubt often true, but this says nothing about the relationship between the total amount of goods being produced at a certain point in time, the total number of workers existing at that time, and how that work is to be apportioned among them. At the point when the unemployment in question arose, why was it not a reasonable policy to distribute the work more evenly? If the economy hitherto has been producing a sufficient amount of goods to supply consumption needs, and then unemployment increases due to technological changes and a reduced need for human labor, clearly the total quantity of potential workforce effort is now greater than is needed. Thus reducing everyone’s hours seems like an entirely reasonable response. Society possesses the productive capacity to satisfy consumer needs but no longer requires the same amount of labor. Thus both the amount of work, as well as the product of work, can be distributed among the total labor force, taking into account the new technology.

The fact that Samuelson thinks that only by employing workers at lowered wages can this problem be addressed, shows that he is assuming as a fact of nature the position of dominance by capitalists and the corresponding subordinate position of workers. Of course, capitalists are not likely to pay workers the same wage they previously received if they now work fewer hours. But both the productive capacities of the workers remain the same, society’s need for goods and services remains the same (in the short run), and the economy’s capacity to produce has increased. Any mismatch is in the connection between the worker and the means of production. A response that has regard both for the purpose of an economy and its connection with the social fabric as a whole would see reduced work hours as a logical response to the situation.

Next let us look at the question of cyclical unemployment, that type which comes about “when the overall demand for labor is low” because of a business cycle downturn. I am afraid my argument will seem hopelessly naive to most economists. But that does not mean that it is wrong, only that the elaborate superstructure that economists have erected over the past couple centuries tends to obscure some obvious economic facts.
God created human beings with both the capacity for work and the need to consume. In fact, these two characteristics balance one another in that anywhere there are people, there are both producers and consumers. Thus it would seem that everywhere people can do the work which supplies them with the goods they need. The human capacity for work corresponds roughly with our need for the products of that work. The more people, the more workers, the fewer people, the fewer workers. What does this have to do with the question of unemployment? If in general each person is able to perform productive work sufficient to supply at least his own needs, then why should anyone be idled, unable to work? Does not each person create his own demand and at the same time provide the means for supplying that demand?
The reason that any particular person’s capacity for work cannot be the means of his supplying his needs is usually because he is denied access to the means for production, to land or tools, for example. On occasion a harsh environment makes it difficult to take advantage of mankind’s capacity to produce, but in general this is rare. This is not a problem, then, that arises from the nature of human economic activity, it is an organizational problem, one ultimately occasioned by the question of who owns or controls land or tools. The more complicated the relationship between individuals and the means of production, the more likely is some sort of organizational or structural difficulty which impedes people’s ability to work and produce. Capitalism heightens this tendency not only by the complexity of its structure, but by creating a class of owners whose primary and direct interest is not in producing for the needs of mankind, but in convincing people to buy their product, whether needed or not, whether well-made or not.
Hence in capitalism there exist business cycles, those alternating periods of boom and bust which are the causes for the cyclical decrease in the demand for labor, and which come about because of capitalism’s propensity toward overproduction and speculation. Since the tendency in capitalism is simply production for the sake of sales, not production for the sake of reasonable use, the tendency to overproduce is always present because the capitalist class, people one step or more removed from actual production, have little or no interest in production as such. But under a well-functioning distributism, with a healthy structure of intermediate occupational groups (guilds), part of whose aim is to match economic activity with society’s needs, business cycles would either not exist or would be milder and less disruptive.
We can see how the complexity of a capitalist structuring of the economy contributes to the imbalances that create cyclical unemployment if we contrast that with a very simple distributist economy. In such an economy, one in which all workers owned their land and tools and produced whatever was needed for themselves and their families, the immediate connection between work and consumption would be obvious, since each person would be the primary producer of most or all of what he and his family needed, and the one-to-one correspondence between a worker’s need to consume and his ability to produce would be obvious. Of course such an economy is hardly possible outside of a primitive level of culture, and in any case is not desirable. The division of labor, though it can be extended too far, has obvious benefits to humanity, and I know of no distributist who opposes it. Indeed, the medieval urban distributist economy assumed and fostered the division of labor up to a point. But what we should note here is that the more complex the connection or relationship between workers and the means of production, the more possibility that a worker will be hindered in the exercise of his ability to produce. Distributism tries to keep that connection as simple as the division of labor and other necessary factors will allow, while capitalism needlessly elaborates that by shifting emphasis from production for fulfillment of human needs, to production oriented toward sales, toward new products that often have little utility, together with a constant preoccupation with higher profit margins, so that capital seeks not merely a sufficient return, but an ever higher one.
Any society and economy that is structured toward man’s genuine welfare ought to seek to make use of the obvious connection between the human need to consume and the human ability to work and produce.
This must be kept front and center in our economic thinking, and any needless elaborations and complexities which are introduced into the economy must be eliminated or at least watched carefully lest they create conditions, such as unemployment, which are socially or economically harmful. In a distributist economy the natural relationship between production and consumption would be one of the fundamental principles of its economic organization.
But in addition to the three types of economic unemployment that economists note, there is another type which they are reluctant to acknowledge, or at least to regard as a significant problem. This is unemployment caused by trade agreements. Although the trade facilitated by agreements such as NAFTA can be called free only with numerous qualifications, still it is usually in the direction of freer trade that such agreements lead. Such trade pacts are based on the neoclassical doctrine of comparative advantage, which Paul Samuelson calls “one of the deepest truths in all of economics.”[4]
Comparative advantage is based upon a fact, to be sure, that countries excel better at some products than others, and from this it is argued that it is in the interests of all countries to specialize in the products that they can produce most efficiently in order to increase the overall living standard of all countries. While superficially plausible, in fact there are major objections against the theory. In the first place, it treats each country as if it were merely a site for production, ignoring cultural or legal factors. For example, the unique cultural and legal situation of Mexico included Indian villages which held land in common and which in consequence were able to be self-supporting in food. Trade agreements which require land to be freely bought and sold destroy such communities, despite any elegant graphs that economists concoct purporting to prove that everyone will be better off under these agreements. More fundamentally, the theory of comparative advantage assumes that more and more stuff, what is called economic growth, is the summum bonum of human life. Consider Samuelson’s discussion of objections to international trade agreements.

    But this does not mean that every individual, firm, sector, or factor of production will benefit from trade…. Recent studies indicate that unskilled workers in high-income countries have suffered reductions in real wages in the last three decades because of the increased imports of goods from low-wage developing countries….

    The theory of comparative advantage shows that other sectors will gain more than the injured sectors will lose. Moreover, over long periods of time, those displaced from low-wage sectors eventually gravitate to higher-wage jobs…. Nations that disregard comparative advantage pay a heavy price in terms of their living standards and economic growth.[5]

Unfortunately, “over long periods of time” most of those unskilled workers will be dead long before they manage to “gravitate to higher-wage jobs,” and in the meantime the towns and cities in which they live will be devastated, their families often hurt, social problems will develop, and in general the real standard of living – which is not measured in terms of how much stuff we possess – will decline. The overall amount of available commodities might increase, at least for some people, such as economics professors, but at the cost of buying goods produced by poorly-treated workers in “low-wage developing countries.” International trade can be beneficial to all parties, but only if many more factors besides the total quantity of goods produced and sold are considered. Distributism, since it is more than an economic system, would tend to create a society which did not give material goods a greater value than they deserve. As St. John Paul II wrote in his encyclical Centesimus Annus,

It is not wrong to want to live better; what is wrong is a style of life which is presumed to be better when it is directed toward “having” rather than “being,” which wants to have more, not in order to be more but in order to spend life in enjoyment as an end in itself. (no. 36)

Mainstream economic thought is based on the idea that human life is not about “being,” but about “having,” about, as Samuelson avers, producing enough stuff so that “the average American could live at the level of the average doctor or big-league baseball player.”[6] This is nothing other than the philosophy of Hell, a point of view opposed to any Christian conception of life. International trade need not create unemployment, but it will do so if it is based on the notion that any increase in the amount of commodities produced, sold or traded, is a good thing, regardless of any effect it has on human life, individual or social.
Unemployment need not exist, or at least, need not be the problem that it so often is in a capitalist economy. If we are willing to rethink economic principles in the light of fundamentals, then we will see that distributism offers a way out of the capitalist orientation of economic activity which diverts it from its natural end of providing for the genuine consumption needs of mankind.
Notes: 
1: Note that I am dealing with unemployment as an economic question only. It is arguable that there exists what might be called cultural unemployment, but this is outside of the scope of this article.

2: Quotations from Paul Samuelson, Macroeconomics, 16th ed., 1998, p. 259.

3: Paul Samuelson, Microeconomics, 17th ed., 2001, pp. 257-58.

4:  Paul Samuelson, Macroeconomics, 16th ed. 1998, p. 388.
5:  Paul Samuelson, Microeconomics, 17th ed. 2001, p. 306.
6:  Ibid., p. 4.
You can find the original publications here and here.

Parties in Dependency: Proper Notice and Participation Is Essential

The stakes in a dependency matter are extremely high.  Indeed, one’s parental rights over his child could be forever terminated in such a matter, so it is imperative that the parties involved receive sufficient notification of the hearings which take place and are given a full opportunity to participate.  The trial court, in In the Interest of K.S., a Minor, Appeal of: A.L.W., 2017 WL 1162449, has made it clear that proper notice and participation of the parties is absolutely essential in a dependency case.

In K.S., the child-at-issue (“Child”) was placed into a series of homes due to mistreatment and/or an inability of the Child’s parents to care for the Child.  Due to the instability of the Child’s housing, Children and Youth Services (“CYS”) eventually filed a Shelter Care Application requesting temporary placement of the Child into the custody of CYS.  A hearing was scheduled for the Shelter Care Application, however the Child’s mother (hereinafter “Mother”) and father were both incarcerated at the time of that hearing.

The attorney for Mother appeared at the hearing and requested a continuance of the same because, while Mother wanted to attend the hearing, she was unable to do so due to her incarceration and, perhaps more importantly, the prison in which she was incarcerated refused to allow her to participate at the hearing by telephone.  CYS opposed the continuance request on the basis that Mother, regardless of whether she could participate at the hearing, could not receive custody of the Child due to her incarceration.  In other words, as placement was the subject of the hearing, and Mother could not receive placement, her participation would not result in her receiving placement regardless of whether she appears and/or participates.

The trial court agreed with CYS and denied the continuance.  CYS then proceeded to request an Adjudicatory Hearing, with Mother’s attorney objecting again due to her unavailability.  The trial court overruled Mother’s attorney’s objection and granted CYS’s request to adjudicate the Child dependent.

The trial court, at the conclusion of the hearing, adopted CYS’s recommendations, issued a Shelter Care Order, granted CYS custody of the Child, and issued a Dependency Order.  Mother subsequently filed a timely notice of appeal of the above-described court orders.  Mother raised two issues on appeal: (1) she believed the trial court erred in denying her ability to participate in the above-described hearing; and (2) she believed the trial court erred in determining that the best interests of the Child would be served by denying her due process.  Mother pointed out that there were no exigent circumstances which required an immediate adjudication of the case before affording her opportunity to participate.

On appeal, Mother argued that the clear operation of the relevant procedural rules regarding notice and service were violated which justifies vacating the trial court’s adoption of CYS’s recommendation.  In making her argument, pointed out three procedural rules.  First, Mother argued that there was a lack of compliance with Pennsylvania Rules of Juvenile Court Procedure Rule 1331.  Rule 1331(A) states that “[u]pon the filing of a petition, a copy of the petition shall be served promptly upon the child, the child’s guardian, the child’s attorney, the guardian’s attorney, the attorney for the county agency, and the county agency.”  Furthermore, even if the parent is not a child’s guardian, she still must receive service of a Dependency Petition.  Second, Mother points to a failure to abide by Pa.R.J.C.P. 1361 which requires the following: “[t]he court shall give notice of the adjudicatory hearing to…(4) the parents….”  Third, Mother also argues that the requirement of the terms of Pa.R.J.C.P. 1360(A), namely, “[t]he court shall issue a summons compelling all parties to appear for the adjudicatory hearing” was not complied with by the trial court.  Rule 1360 goes on to say: “[t]he summons shall: (1) be in writing; (2) set forth the date, time, and place of the adjudicatory hearing; (3) instruct the child and the guardian about their rights to counsel, and if the child’s guardian is without financial resources or otherwise unable to employ counsel, the right to assigned counsel; (4) give a warning stating that the failure to appear for the hearing may result in arrest; and (5) include a copy of the petition unless the petition has been previously served.”  Fourth, pursuant to Pa.R.J.C.P. 1406(A)(1)(a), the trial court was to specifically ascertain whether the notice requirements of Pa.R.J.C.P. 1360 and 1361 were met (the Rule specifically states “(1) Notification. Prior to commencing the proceedings, the court shall ascertain: (a) whether notice requirements pursuant to Rules 1360 and 1361 have been met….”

Upon the Superior Court’s review of the underlying matter, it observed that the trial court failed to comply with the Rules noted above.  First, the Dependency Petition in this case was filed the same day as the Shelter Hearing and appears in the record after the entry of the Shelter Care Order.  Obviously Mother could not have received service of the Petition per Rule 1331.  Second, due to the timing of the Petition, as compared to the applicable Shelter Care Order, Mother simply could not have received service per Rule 1331.  Third, the notice of the Adjudicatory Hearing was, strangely, entered on the same day as the hearing itself, and therefore obviously could not have provided Mother notice per Rule 1361.  Fourth, while there appears to have been a summons issued per Rule 1360, no affidavit of service was filed for the same pursuant to Pa.R.J.C.P. 1363.  As a result, there is nothing in the record suggesting Mother was properly served with the summons.  Furthermore, nothing in the record reflects any reasonable efforts to notify Mother of the above were made (see Rule 1363(E)).  To that end, Superior Court observed that due to the prison’s inability to provide Mother with the opportunity to telephonically appear at the hearing, she could not have been provided notice during the hearing itself.  Finally, the trial court never even took the opportunity to ascertain if the service requirements of Rules 1360 and 1361 were met before moving forward with the Adjudicatory Hearing.

Based on the above, the Superior Court held that the trial court abused its discretion by holding an Adjudicatory Hearing without ensuring strict compliance with the service rules noted above.  Consequently, the Superior Court vacated the trial court’s order and remanded the case for a new hearing ensuring Mother can participate.  Ultimately, for practitioners, this decision makes it abundantly clear that the service requirements noted above will be strictly enforced requiring that ensuring compliance is paramount.

Originally published in The Legal Intelligencer on July 11, 2017 and can be found here and republished in the Pennsylvania Family Lawyer in its October 2017 issue and can be found here.

NBI Seminar: Family Law From A to Z – Roundup

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Listed below is the complete list of the materials I wrote for my portions which can be read here on this blog.

Thanks!

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NBI Seminar: Ethics

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Ethics.”

Thanks!

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 Client/Lawyer Relationship

The client/lawyer relationship in a family case is unlike that relationship in any other case.  A family law case involves extremely intimate and visceral issues affecting intensely personal aspects of one’s life.  A family case looks at one’s sex life, home life, relationship with a significant other, children, and finances; there are few things more personal than these.  When a client seeks out an attorney to help him through these issues, that attorney should be cognizant that the client is coming to him for more than just a mere legal problem, but a problem affecting his every day personal life.  As a result, the attorney’s role with his family law client is often more than just as a legal advisor, but also something of a counselor as well.

There are factors other than legal maneuvers and/or dollars and cents that go into the issues which the attorney and client need to address in a family case.  Like all legal issues, a family client should have a sober view of the costs and benefits of the litigation at hand, but, due to the intensely personal issues involved, there is more than just costs to consider.  For example, a family client embroiled in a divorce may be fighting for a family heirloom which, for that client, is of priceless value.  Other times, the emotionality in the case is so high that the client may be willing to spare no costs to have his revenge against his spouse.  Still other times, clients may pursue the custody of their children without any sense of the costs involved and/or approach issues through emotion rather than rationality (e.g.: being unwilling to accept that his spouse is in a new relationship).

Suffice it to say, it is imperative for an attorney involved in a family case to take the time to think beyond mere legal considerations and delve into the emotional and personal issues which form the underpinning of those legal issues.  A client often has emotional attachment to his house, or his personal property, and, most especially, family heirlooms.  The attorney should help the client walk through his emotions to discern whether it is worthwhile investing a lot of time and/or money into those items.  Other times, a client may be pursuing a course of action that has revenge as its primary motivation, as opposed to a legitimate legal or personal reason; here, again, the attorney’s role is to help direct the client’s efforts to more productive ends.

Custody cases are cases which especially need an attorney’s sober input into an emotionally charged situation.  Understandably, clients become extremely emotional when dealing with the custody of their children.  Sometimes clients simply cannot accept that the other parent has entered into a new relationship.  Other times, a client has a hard time dealing with the fact that the other parent makes different decisions than he would have.  Of course, still other times, unfortunately, a client may not objectively be a responsible or good parent.  It takes an attorney, who is dispassionate from the case, to help the client look at the matter rationally and from a more objective point of view.  The focus of a child custody matter is the child, and what is in his best interests, and sometimes those best interests are not served by one’s own client.  It often takes more than mere legal analysis to help a client recognize what is best for his children.

Custody is also unique inasmuch as the case can continue for many years, has to account for all the various chances and vagaries of life, and its effects can last long after the case concludes.  A child will take with him for the rest of his life how his parents interacted with him and with one another.  Furthermore, in most cases, a child will maintain relationships with both of his parents during the case, and long after the case concludes, which means that they (the two parents) will have to deal with one another indefinitely.  So, it is important for an attorney to sit down with his client and talk about the emotional and interpersonal implications of custody that are not necessarily legal issues.

Attendance at Client Conferences by Friends or Family of Client

The Rules of Professional Conduct apply to family cases just as much as they do to other sorts of cases; therefore, Pa.R.P.C. 1.6 applies.  Pursuant to Rule 1.6 a client is entitled to lawyer/client confidentiality.  Given this, then, it is important to be cognizant and vigilant as to who is permitted into a conference with the client.

As with any case, certain factors need to be considered before allowing a third party into a client conference: (1) does the client give permission to have the third party in the room?; (2) will the client provide compromising information that could be drawn from the third party at a hearing (and unprotected by lawyer/client confidentiality); and, (3) could the third party be an adverse party?

As a threshold matter, the client must grant permission for anyone to be present at any conference.  The presence of a third party serves as a waiver of confidentiality, and, generally speaking, only the client can waive lawyer/client confidentiality/privilege.  The other factors listed above are tactical in nature.  Once the confidentiality/privilege is waived, the third party could be called as a witness and examined at a hearing as to what the client said in what was believed to be a private meeting.  Obviously, this could serve to severely handicap a case if certain issues come to light that otherwise could have remained in confidence.  Finally, it is not uncommon for a third party – such as a grandparent – to seek custody of a child.  The client and his parents may be allies when a case begins, but life is unpredictable and the relationship between a client and his parents could deteriorate, leading to the grandparents seeking custody themselves.  As a result, an adverse party has had direct and intimate access to confidential lawyer/client communication and information which could be used against the client.

Finally, a person who finds himself in a custody case is often in a compromised position in his life.  In other words, sometimes a person who is very young and/or financially insecure and/or still living with his parents and/or frightened or scared or at a loss as to what to do, has a child.  Such a person reaches out to the people in his life, say his own parents or his new girlfriend or wife, or what-have-you, for advice, counsel, and/or moral support.  While this is perfectly natural and in most situations a good thing, it is important to be attentive to undue influence over the client from these third parties.  It is getting increasingly common in our post-modern culture for grandparents to have a significant role in the raising of grandchildren.  An attorney has to ensure that the goals being sought, and the arguments being made, and the tactics employed are the ones the client wants (with the attorney’s guidance and advice of course), and not the goals, arguments, and tactics the third party wants.  Obviously, a client will be influenced by all of the voices in his life, but the attorney must ensure, as best he can, that the decisions made by the client are his own and not merely those he is pressured into by third parties.

Attorneys’ Fees

An attorney has an obligation to ensure he clearly expresses his fee structure and billing to his client.  This clarity includes the amount of the fee, whether the fee is flat or hourly (and, if hourly, how that is calculated), expressing the billing rate, and for what he is using the fee.

The main distinctive in family law, as compared to other areas of the law, is that a family law attorney may not enter into a contingency fee arrangement with a client where payment is contingent upon securing a divorce or upon the amount of alimony or support received by the client.  Obviously there are no contingency in custody matters either.

Of course, when pursuing payment of one’s attorney’s fees by the opposing party, one must ensure one’s billing is clear, reasonable, and accurate.

Communication With Adverse Party

Communication with an adverse party, if represented, is like any other sort of case.  Communication ought to be timely, civil, and professional.  When discussing the case with the adverse party, it behooves the attorney to keep in mind that he does not have personal knowledge of the underlying issues and to do his best not to get embroiled in the emotionality of the underlying issues.  While strong advocacy is always key to an attorney’s representation of a client, keeping one’s mind open is beneficial, especially in cases involving children where their best interests are being sought (as opposed to one’s client’s best interests).  As mentioned above, emotionality is high in family court cases, and an attorney ought not contribute to it, but, rather, should serve to help temper it.

Communication with an unrepresented party presents a couple of variables that would not necessarily be present with a represented party.  It is important for an attorney not to misrepresent the law, bully, or otherwise misuse his influence or position when communicating with an adverse party.  A way to ensure as much transparency as possible is to keep communications with unrepresented parties in writing and stored in the client’s file, regardless of whether that is electronic communication, facsimile, or traditional letters.  It is worth noting that the negative feelings an adverse party has toward one’s client are, more often than not, easily transferred to the attorney representing that client.  So, as a result, the aggressive stance and perhaps unkind (if not directly insulting) words which could be directed towards one’s client will frequently be directed toward that client’s attorney.  The attorney must do his best not to get caught up in the moment and respond personally in the face of such treatment.  Keep in mind that the adverse party is usually just as emotionally invested in the case as one’s own client and one should not take the negative treatment one receives personally but, rather, understand it to be the expression of a frustrated and angry individual who has dispute with one’s client.  Keeping a level head, calm voice, and focusing on the issues, will help turn away the wrath of an adverse party, and help foster an environment where resolution can be achieved.

Finally, in the context of divorce, there is a notice period which can be waived provided the appropriate document is prepared and executed.  As an unrepresented party is typically at a disadvantage against an attorney, it is best, in order to avoid as much ambiguity as possible, simply not to have the unrepresented party execute the waiver, to ensure he is given as much leeway as reasonably possible.

Malpractice Concerns

Ethics complaints/grievances are heard by the Pennsylvania Disciplinary Board.  All lawyers admitted to practice in the Commonwealth of Pennsylvania must comply with the Pennsylvania Rules of Professional Conduct.  The Disciplinary Board serves to ensure lawyers remain compliant with the Rules.

When a client believes an attorney has violated the Rules of Professional Conduct, he has the right to bring a complaint with the Disciplinary Board.  Once the complaint is filed, the Disciplinary Counsel takes the lead and determines whether that complaint will lead to discipline.  As a result, a complainant (i.e.: the client) is merely a witness to the disciplinary complaint while the Disciplinary Counsel takes the lead.

The Counsel, if it determines that an attorney my be subject to discipline, conducts an investigation.  This investigation includes affording the allegedly unethical attorney an opportunity to respond to the allegations made against him.

In order for an attorney to be found to have committed misconduct, the opposing party must prove the alleged misconduct with clear and convincing evidence.

The potential discipline an attorney could receive is either private or public.  Private discipline typically does not require a hearing as it is generally reserved for minor violations that will not lead to disbarment.  A minor violation is usually a matter which is a first offense and/or something that can be easily corrected and/or the result of merely poor habits or case management.  A private discipline – which is not publically available – includes things like private reprimands and informal admonitions.

A serious violation, which could result in discipline like disbarment, suspension, or censure, is considered public discipline.  Public discipline is typically imposed after a hearing.  Public discipline can only be imposed by the Supreme Court of Pennsylvania.  If an attorney is disbarred, the attorney cannot practice law at all in any way.  A disbarred attorney may seek reinstatement after five years, but only if the attorney can show that he can meet the moral qualifications, and his resumption of the practice of law will not diminish the integrity of the bar.  Disbarment is completely public except in situations when the attorney elects to resign from the bar, in which case the record upon which the disbarment is based is confidential.  Another public discipline is suspension.  While suspended, an attorney cannot practice law.  Suspension can be as long as five years in length, but if it reaches five years in length, the same standards to resume practice as disbarment apply.  Finally, an attorney may be publicly censured.

The time an ethics complaint can take may be relatively short, but could also last approximately one year in length.

As a complainant is not a party to the ethics matter, he has no right to appeal an adverse decision.  Instead, the Counsel allows for an internal review process which can be requested by a Complainant.  If the Counsel rules in favor of the attorney, that attorney cannot bring suit against the Complainant as any communications and/or testimony are absolutely privileged and the person who provided the communication and testimony is immune from civil suit.

It is important to note than an ethics proceeding is not a substitute for legal malpractice law suit.

What is the purpose of our economic activity?

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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Based on a talk given at
The American Chesterton Society Conference
5 August, 2016
When we look at the economic conduct of mankind and ask ourselves why the human race engages in such activities, I suppose that everyone would admit that we do so in order to produce goods and services for our use. So far, so good. But I submit there are two contrasting ways of looking at this activity and the products that result from it. This contrast can become clear if I juxtapose two quotations that exhibit two very different attitudes toward the economic activity of mankind. The first is from St. Thomas Aquinas, who wrote that “…the appetite of natural riches is not infinite, because according to a set measure they satisfy nature; but the appetite of artificial riches is infinite, because it serves inordinate concupiscence….” (1) St. Thomas was here contrasting real economic goods – “natural riches” – with “artificial riches” – money and other surrogates for real wealth. The former serve us, they “satisfy nature,” and we desire only enough of them as we can reasonably use, for there is only so much stuff which any person can actually use, and if we acquire more than that, we must resort to devices such as renting storage bins in order to keep our extra and unnecessary possessions, something which in St. Thomas’ time happily did not exist. But even in the thirteenth century it was easier to store up money than actual physical things, and today this is incomparably easier, since bank statements and stock certificates take up very little space. But these sorts of goods can serve “inordinate concupiscence,” for there is a constant temptation to acquire and retain more than we really need or that can possibly serve any genuine human need.

My second quote is from the late Paul Samuelson, winner of a Nobel prize in economics, who wrote

An objective observer would have to agree that, even after two centuries of rapid economic growth, production in the United States is simply not high enough to meet everyone’s desires. If you add up all the wants, you quickly find that there are simply not enough goods and services to satisfy even a small fraction of everyone’s consumption desires. Our national output would have to be many times larger before the average American could live at the level of the average doctor or big-league baseball player. (2)

Here we have two opposed conceptions of the purpose of economic activity, one which is focused primarily on what is natural to humanity, which fulfills human needs, and the second which deliberately abstains from any moral consideration of human desires. If someone wants something, that’s all that matters. The economy exists to satisfy any and all desires.

Now I should note that Aquinas is not asserting that it’s only our basic needs for food or shelter or clothing that are natural. The purposes for which we need material goods can be broadly divided into two parts: first, the absolutely necessary goods, sufficient food, water, shelter, to keep the human race alive. But if we stopped there we would be like ants or bees. They also engage in work to provide for themselves these necessities of life. Human beings, however, are rational animals, that is, our capacities surpass the merely material level, and hence for us a proper human life is not limited simply to survival. We need objects of beauty, music, books, even, in some measure, devices and inventions that make life easier or save time and effort. Without these a properly human life is impossible or difficult. But all the same, St. Thomas sets up human nature as the standard against which man’s economic activity must be measured, whereas Samuelson simply takes each and every demand for a good or service as a given.

I trust I don’t need to belabor which of these two attitudes toward economic activity and material things ought to characterize a Christian, whether Catholic, Protestant or Orthodox. Holy Scripture itself is quite clear on this point:

…if we have food and clothing, with these we shall be content. But those who desire to be rich fall into temptation, into a snare, into many senseless and hurtful desires that plunge men into ruin and destruction. For the love of money is the root of all evils; it is through this craving that some have wandered away from the faith and pierced their hearts with many pangs. (I Tim. 6:8-10)

In Centesimus Annus St. John Paul II speaks of “the right to possess the things necessary for one’s personal development and the development of one’s family” (no. 6). And in the same encyclical he writes in another passage (no. 36),

It is not wrong to want to live better; what is wrong is a style of life which is presumed to be better when it is directed toward “having” rather than “being,” which wants to have more, not in order to be more but in order to spend life in enjoyment as an end in itself.

Now I realize that it’s not always easy to say how much is “necessary for one’s personal development and the development of one’s family.” In fact, there is apt to be disagreement about what is a reasonable standard that satisfies nature. And to some extent such disagreement is to be expected, for it’s impossible to calculate such a standard with mathematical exactness. But the important thing, and certainly the first thing to do, is to recognize that mankind’s economic activity and the products that result therefrom do have a purpose, to “satisfy nature,” and not to satisfy simply any and every desire prompted by the wish “to spend life in enjoyment as an end in itself,” so that everyone can live in the manner of a major-league baseball player. At some point, any sensible person will have to admit that the needs of nature have been satisfied, and that anything beyond that is simply excess.

Now, If we accept what I have said so far, what logically follows? We can apply the teaching of St. Paul and St. Thomas and St. John Paul not only to individuals and families, but also to societies.  I am aware that many individuals and families do seek in some degree to acquire and use material goods according to these stipulations and warnings. In a society such as ours this is not easy to do, and, as I just said, it’s often very difficult to decide what is a reasonable standard of living that will satisfy nature, especially since American society can make it difficult to live a countercultural life. In this regard I will note only two things.

First, as Benedict XVI wrote in his encyclical Caritas in Veritate (no. 37), “every economic decision has a moral consequence.” Since the kinds of stores we patronize, the kinds of products we buy and use, have consequences that are both economic and environmental, therefore they have both moral and spiritual consequences for each of us. Someone who desires to “live at the level of the average doctor or big-league baseball player” is making decisions which not only have moral consequences but unavoidably shape that person’s soul according to a particular pattern. A lifetime of our economic decisions will determine whether we have shaped ourselves according to the image of Samuelson’s economic man or to the opposite pattern suggested by Holy Scripture and the writings of the saints.

Secondly, just as it’s very difficult for someone raised in a society saturated by pornography and sexual promiscuity to realize what a sane and healthy sexuality is, so it’s hard for us who were raised in a commercial society, a society which more or less makes riches and material goods an idol, to realize what a sane attitude toward work and material goods is. In both cases we have to strive, using all the means of grace available, to form sound judgments. But now I want to turn our attention to the question of society as a whole, that is, about how a society that seeks to orient its productive activity toward satisfying nature might conduct itself.

The following is a description, from Richard Tawney’s seminal book, Religion and the Rise of Capitalism, of the outlook of Medieval Europe toward work and material goods.

Material riches are necessary; they have a secondary importance, since without them men cannot support themselves and help one another; the wise ruler, as St. Thomas said, will consider in founding his State the natural resources of the country. But economic motives are suspect. Because they are powerful appetites, men fear them, but they are not mean enough to applaud them. Like other strong passions, what they need, it is thought, is not a clear field, but repression. There is no place in medieval theory for economic activity which is not related to a moral end, and to found a science of society upon the assumption that the appetite for economic gain is a constant and measurable force, to be accepted, like other natural forces, as an inevitable and self-evident datum would have appeared to the medieval thinker as hardly less irrational or less immoral than to make the premise of social philosophy the unrestrained operation of such necessary human attributes as pugnacity or the sexual instinct.

And he continues with his description of medieval economic ethics:

At every turn, therefore, there are limits, restrictions, warnings, against allowing economic interests to interfere with serious affairs. It is right for a man to seek such wealth as is necessary for a livelihood in his station. To seek more is not enterprise, but avarice, and avarice is a deadly sin. Trade is legitimate; the different resources of different countries show that it was intended by Providence. But it is a dangerous business. A man must be sure that he carries it on for the public benefit, and that the profits which he takes are no more than the wages of his labor. (3)

And another historian wrote along similar lines,

We can, therefore, lay down as the first principle of mediaeval economics that there was a limit to money-making imposed by the purpose for which the money was made. Each worker had to keep in front of himself the aim of his life and consider the acquiring of money as a means only to an end, which at one and the same time justified and limited him. When, therefore, sufficiency had been obtained there could be no reason for continuing further efforts at getting rich,…except in order to help others. (4)

The questions I’d like to consider now concern how a truly Christian society would implement these ideals. Many people, certainly most Americans, would think that adherence to such standards must be something purely voluntary. At most, the Church would seek to persuade people of its desirability via her preaching and catechesis. And certainly that is the first thing to be done, to create a social consciousness that the pursuit of riches beyond what one needs is both criminal and stupid. Criminal because it helps create a society that upholds false ideals and corrupts all of our souls, stupid because it detracts from what life in this world is about, and above all, because it makes more difficult our attainment of eternal life. I am not asserting that it is a sin simply to be rich, but I do assert that riches are almost always a near occasion of sin, and therefore we’d better be pretty sure we have a genuine justification for our riches. And especially do we need a very good justification for seeking more riches if we already have enough so that the demands of nature are satisfied.

But there is more. You’ll notice what Tawney said in the passage I just quoted, “At every turn, therefore, there are limits, restrictions, warnings, against allowing economic interests to interfere with serious affairs.” A Christian society will not be content to simply use moral persuasion in order to correctly orient out attitude toward work and material goods. If nothing else, such a society will make it rather hard for someone to get rich. It will certainly do nothing to facilitate such acquisition of riches, and it will try to structure its laws, tax code and general economic arrangements so that it is easy to earn enough to support one’s family, but hard to do more.

Many are familiar with the taxation scheme suggested by Hilaire Belloc in his 1936 book, The Restoration of Property, according to which any enterprise which exceeded a certain size would be taxed at such a high rate that no one would expand his business beyond a modest size. I know that many people have an instinctive violent reaction against such proposals, but those who do should ask themselves a couple questions. How is this an unjust restriction? How is anyone’s true good harmed by such laws? Until recently we as a society in the United States saw this clearly with regard to that other great human appetite, sexual satisfaction. Within the lifetime of many of us divorce was in most states difficult to obtain, pornography was strictly regulated or even prohibited, homosexual activity illegal. And laws on the books even forbade adultery, even if they were rarely enforced. Even today prostitution is illegal in nearly every state.  We justified these restrictions by saying that such activity was contrary to both the natural law and the revealed law of God, harmful to individuals and to the social order, and that therefore the free choices and desires of individuals could justly be limited in such matters.

If we are serious about conforming our lives to the norms of morality with regard to money and property, the same argument applies: “those who desire to be rich fall into temptation, into a snare, into many senseless and hurtful desires that plunge men into ruin and destruction.” The disordered striving after riches is as hurtful to the common good as is the disordered striving after sexual pleasure.  Both material wealth and sexual pleasure are true goods, but they are goods only in their rightful places. No one’s genuine freedom or legitimate rights are infringed upon if the pursuit of wealth is hindered and directed toward legitimate channels, even by use of state power, just as no one’s genuine freedom or legitimate rights are infringed upon by legal restrictions on disordered sexual behavior.

There is a wonderful quote from G. K. Chesterton in What’s Wrong With the World that juxtaposes so well these two areas of human behavior.

I am well aware that the word “property” has been defiled in our time by the corruption of the great capitalists. One would think, to hear people talk that the Rothchilds and the Rockefellers were on the side of property. But obviously they are the enemies of property; because they are enemies of their own limitations. They do not want their own land; but other people’s…. It is the negation of property that the Duke of Sutherland should have all the farms in one estate; just as it would be the negation of marriage if he had all our wives in one harem. (5)

If it is proper to prevent the Duke of Sutherland from obtaining all of our women as his wives, why is it not proper to prevent him from obtaining all the property as his own?

Let me go one step further, or one level deeper, in our exploration of this topic. Most people who would object to what I just said about the use of social or legal power to restrict our acquisitive appetites, would object, I think, because, usually unknowingly, they hold an idea about social or political authority which is grounded not in classical philosophy or Holy Scripture, but in the Enlightenment of the 18th century, most notably in the writings of John Locke. Government, according to this notion, is merely a necessary evil, necessary because of mankind’s tendencies toward anti-social conduct. “If men were angels,” wrote James Madison in Federalist no. 51, “no government would be necessary.” Implicit in such a notion is the idea that man’s natural state is a-social, and that every restriction we accept as part of living in society is a restriction on our natural freedom, justified usually by the benefits which sociey brings, but still, something essentially unnatural, something which inhibits our natural freedom. Most political discourse in the United States, of both liberals and conservatives, simply assumes such an understanding of freedom and society.

Here again, though, we find Thomas Aquinas teaching a different view. In the Summa Theologiae (I, q 96, art 4) he asks whether there would have been subordination of man to man in the state of innocence, i.e., without Adam’s fall into sin. And he answers his question clearly, saying Yes.  Although there would not have been the domination (dominium) characteristic of the slave (servus), who is “ordered to another,” there would still have been the kind of subjection proper to the free man, when someone directs him to his own good or to the common good. And the primary reason given by Aquinas for this is because man is “naturally a social animal” and “social life cannot exist unless someone presides who aims at the common good.” In other words, according to Aquinas, even if our first parents had never sinned and lost the state of original justice, we still would have required a sort of government, a government that would not have needed to punish anyone, but was still there to coordinate and direct our efforts toward the common good.

I submit that this difference between St. Thomas and Locke manifests the fundamental error of almost all political discourse in the Anglo-Saxon world, especially the United States. But Locke is simply wrong: man is by nature a political animal, our natural state is one of community, with all the necessary restrictions that such community requires and implies. This is not to justify tyranny or to deny that personal political freedom is a good, but it is to insist that such political freedom is far from the highest political virtue.  Justice is more important than freedom, and in fact, any understanding of freedom which regards it as primarily the right to do anything which one pleases, is a disordered understanding. Just as marriage vows do not limit our true sexual freedom, but actually allow for human sexuality to flourish in proper freedom, so society, including government, is not a restriction on man’s legitimate freedom, but the precondition for a true flourishing of such freedom. We do not trade a certain amount of freedom for a certain amount of security, as in the Lockean myth of the social contract, but we are placed by God and nature into society, without which freedom would be a meaningless exercise in randomness.

As a result, then, if a society attempts to channel its economic activity toward the common good, it in no way infringes on real economic freedom. Rather it provides the necessary means by which economic activity can attain its true end: not the goods and services that satisfy everyone’s consumption desires, but the appetite for natural riches which according to a set measure satisfy nature. This is true Christian wisdom, this is the teaching of the Church, the command of Holy Scripture, and the sure way toward our eternal salvation.

Notes:
(1) Summa Theologiae, I-II, q. 2, a. 1 ad 3.

(2) Microeconomics, 17th ed., 2001 p. 4.

(3) Richard H. Tawney, Religion and the Rise of Capitalism, New York, 1926, pp. 31-32.

(4) Bede Jarrett, Social Theories of the Middle Ages, pp. 157-158.

(5) Part I, chapter 6.

NBI Seminar: UCCJEA: Uniform Child Custody and Enforcement Act

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “UCCJEA: Uniform Child Custody and Enforcement Act.”

Thanks!

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Parents and children are more mobile than ever.  It is not uncommon for parents and children to live and move to various states over the course of the life of a custody order.  The Uniform Child Custody Jurisdiction and Enforcement Act (23 Pa.C.S.A. §5401 et seq.) was adopted as a way to address and deal with the various pitfalls can afflict a custody case.  The UCCJEA is now the law in 49 states, Washington D.C., and various territories (Massachusetts is the only hold out).

The UCCJEA is divided into four basic parts.  The first part consists of the general provisions (e.g.: definitions).  The second part deals with jurisdiction.  Part three regards enforcing out-of-state custody orders.  Finally, the fourth part contains miscellaneous provisions.

The purpose of UCCJEA is, in large part, to determine the proper forum for almost any custody matter between two states (or, even, a state and another country) and to ensure only one state can actually have jurisdiction.

Jurisdiction attaches to the state that is determined to be the “home state” of the child(ren) at issue.  The “home state” is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the case (if the child is less than six months old, then the state the child has lived in since birth).  If the child has not lived in a state for six months, then the home state will be the state which has “significant connections” with the child and at least one parent or, absent that, “substantial evidence concerning the child’s care, protection, training, and personal relationships.”  Mere physical presence, however, is not required or sufficient to make a custody determination.  Standard notice requirements apply to cases under UCCJEA.  If there is another action already pending in another jurisdiction when the Pennsylvania action is initiated, then Pennsylvania may not exercise jurisdiction over the matter unless the other action is terminated or stayed.  A basic principle one can take from the UCCJEA is that a non-“home state” must defer to a “home state.”

Of course, if more than one state has significant connections and substantial evidence, then the courts in the two potential state jurisdictions are to communicate with one another to determine which state has the most significant connections to the child.  When the courts interact with one another, the parties have a right to submit arguments and facts to the courts regarding their preference of jurisdiction and, at the courts’ discretion, the parties may also participate in their communication.  A record of this communication, regardless of the participation of the parties, must be created and kept.  As part of the cooperation between the two states, a Pennsylvania court is empowered to request assistance from another state to hold hearings, order the production of evidence, order an evaluation, copies of transcripts, and/or the appearance of a party.

A Pennsylvania court may decline to exercise jurisdiction if it is determined that it is an inconvenient forum.  In order to determine whether it is an inconvenient forum, the court must first consider whether a court from another state would be more appropriate according to the following factors (as quoted from 23 Pa.C.S.A. §5427(b):

(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) the length of time the child has resided outside this Commonwealth;

(3) the distance between the court in this Commonwealth and the court in the state that would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which state should assume jurisdiction;

(6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence;  and

(8) the familiarity of the court of each state with the facts and issues in the pending litigation.

If it is found that jurisdiction was assumed by Pennsylvania due to the unjustifiable conduct of a party, then the court has authority to revoke jurisdiction and assess the party which engaged in unjustifiable conduct, expenses, costs, attorneys’ fees, and the like.

Once jurisdiction is established, that state has exclusive and continuing jurisdiction until circumstances change.  The first way circumstances change is if (1) the child and a parent no longer have significant connection with the state and evidence to make a custody determination is not available in that state or (2) a state court determines that neither the child nor either parent reside in the state any longer.

An example of #1 could be as follows: the parents and children live in Pennsylvania for a period in excess of six months.  Unfortunately, the parents divorce and a custody order is entered in Pennsylvania. Eventually the mother and children move to Delaware.  The father remains in Pennsylvania.  The children maintain a significant connection with Pennsylvania through regular and frequent visits with father there.  At some point, father seeks to modify the custody order and files a petition to modify in the same jurisdiction as the original order (i.e.:  Pennsylvania).  In response, the mother attempts to transfer jurisdiction of the case to Delaware.  The UCCJEA, which is designed in part to prevent forum shopping, would serve to prevent the transfer sought by mother by its protection of an issuing court’s jurisdiction unless no parent resides in that state.

An example of #2 could be as follows: the parents and children live in Pennsylvania for a period in excess of six months.  Unfortunately, the parents’ divorce and a custody order is entered in Pennsylvania. Eventually the mother and children move to Delaware while the father moves to New Jersey.  As no parent lives in Pennsylvania, it no longer has exclusive or continuing jurisdiction to modify its own custody order.  Instead, the state where the children reside with at least one parent would likely have jurisdiction.

Once a custody order is entered pursuant to the UCCJEA, a Pennsylvania court is empowered to enforce it and the UCCJEA provides procedures to register a foreign order in Pennsylvania (see 23 Pa.C.S.A. §5445 et seq) .  Of course, the other party has a right to contest the validity of the order that someone tries to register in Pennsylvania, and has twenty days to file a petition contesting after being served notice.  Once registered in Pennsylvania, the courts of Pennsylvania can enforce it as they enforce any other custody order.  The UCCJEA allows for expedited enforcement of a custody determination (23 Pa.C.S.A. §5448) upon petition by one of the parties.  The petition requires representations as to jurisdiction.  A hearing is ordered as soon as possible (“the next judicial day after service of the order unless that date is impossible.”)  A successful petition may result in attorneys’ fees, expenses, and costs to be assessed the opposing party.  Finally, pursuant to 23 Pa.C.S.A. §5451, a party may petition for the issuance of a warrant to take custody if there is immediate danger to the child or immediate risk of removal to another jurisdiction.  If granted, such a petition empowers law enforcement authorities to seize the child for the petitioner from the other party.  The process to secure a warrant also carries with it the potential for an order of attorneys’ fees, expenses, and costs to be assessed the opposing party.

Of course, a state which does not have jurisdiction may enter a temporary emergency order if the child is in danger and needs immediate protection.  Pennsylvania can invoke emergency jurisdiction if a child has been abandoned or needs immediate protection (or the sibling or a parent of the child needs protection).  Once the emergency order is entered, the court determines if there is an existing order from another state and, if so, the emergency order must allow time for the parties to return to the state with jurisdiction.  The emergency order will remain in effect unless and until the “home state” enters a custody order.  If there is already an order in another jurisdiction, or a custody action already started in another jurisdiction, then an emergency order in Pennsylvania must provide the parties a period of time to secure an order from this other state else the emergency order remains in effect.  Upon being informed of the other state’s potential jurisdiction over the emergent matter, the Pennsylvania court must communicate with the court of the other potential jurisdiction.

American Airlines Flight Attendants To Appeal Facebook Harassment Ruling

The Melissa Chinery and Laura Medlin cases against American Airlines, cases currently being litigated by my firm, the Law Office of Faye Riva Cohen, P.C., have been featured in an article entitled “American Airlines Flight Attendants To Appeal Facebook Harassment Ruling,” in Savvy Stews b published on September 2, 2018, which can be found here.

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We’ve all read company policy regarding employee conduct on social media sites. Although one would assume that these policies are there to put a stop to and even prevent workplace bullying, they are only useful if companies enforce them.

In a blow to two American Airlines flight attendants this week, Judge Eduardo C. Robreno ruled that the evidence of workplace bullying and harassment brought forth by flight attendants Melissa Chinery and Laura Medlin was insufficient and untimely. The harassment was also experienced by several additional women who issued affidavits but were not part of the lawsuit itself.

The worst part, American Airlines didn’t do a thing to stop it in the first place.

“The company called me when this all started. My flight service manager said that he was getting calls that I was being harassed publicly on Facebook. My manager called me, then failed to take any action to stop the problem” – Chinery

Faye Riva Cohen, the law firm that represents the plaintiffs, issued the following statement:

“We are disappointed by the Judge’s decision.  Our clients were victims of gender-based discrimination. Given the unique nature of social media, the harassment our clients experienced was all-pervasive and impossible to escape. We believe that the Judge failed to adequately consider the power of social media and its impact on the workplace.

Additionally, we believe that American Airlines acted improperly. American Airlines maintains a social media policy that is used to police the online conduct of its employees. Nevertheless, American Airlines failed to take our clients’ complaints seriously. Until employers treat online bullying with the severity that it deserves, women will continue to be at a disadvantage in the workplace. Our clients are weighing their options to appeal the decision.”

Ms. Chinery shares, The company called me when this all started. My flight service manager said that he was getting calls that I was being harassed publicly on Facebook. My manager called me, then failed to take any action to stop the problem. No apologies from anyone, just an escalated attack.”

RINGLEADER EMBOLDENED BY RULING

Jim Brown, one of the flight attendants accused of the harassment, began gloating on Facebook immediately following the judge’s ruling. He may have spoken too soon since the plaintiffs are planning to appeal the judge’s decision which could legally expose him and American Airlines.

Jim Brown, accused of harassment, has been given cushy positions in the Purser program and others.

In his deposition, Jim Brown admitted to sending a complaint to the company about Chinery that he thought would be anonymous. He also admitted fabricating a story regarding referring to Chinery as “flipper” (slang for “whore”) “to cover my tracks by creating another post and a fake person” (from Brown’s deposition). Despite lying about his words, Brown remains a member of several committees and in the training department and to date has not been investigated. He continues to publicly post on social media, on the day of Judge Robreno’s ruling, saying he was, “Feeling delighted… My message is about Karma working it’s [sic] judicious magic!”

BROWN-NOSING HAS ITS PRIVILEGES?

American Airlines has yet to investigate the harassment claims internally and the men named in the lawsuit remain on special projects, in training positions, and continue to be rewarded with promotions as they are paid and deployed to publicize company messaging to their coworkers. Rewards even included invitations to the wedding of American’s Chief Financial Officer, creating the appearance of special treatment and selective enforcement of company policy.

One may wonder who is responsible for the selection of these individuals to serve in special assignment and training positions. What consequences may they eventually face?

ONLINE WORKPLACE HARASSMENT GROWING PROBLEM

There is a lawsuit against United Airlines for failing to intervene in a pilot’s harassment of a flight attendant. American’s failure to put a stop to the bullying that took place against Ms. Chinery may eventually end up opening a Pandora’s box of liability for the carrier as others step forward to share their experiences and American’s lack of support.

In his memorandum, Judge Robreno writes, “Medlin details only a handful of instances of alleged sexual harassment between 2012 and 2015…including…the general use of sexually-oriented profanity.” Judge Robreno further stated that “insults in the workplace do not constitute discrimination ‘merely because the words used have sexual content or connotations.’” Judge Robreno also contends the alleged harassment was not physically threatening despite the litigants having complained to American Airlines about threats of physical harm.

THEY GANGED UP

Jim Brown wasn’t the only one allowed to get away with behavior that conflicted with the American Airlines social media policy:

[From evidence submitted to the court]

Rick Haskins, a male flight attendant, writing regarding coworkers who voted against a union contract proposal, “Those sixteen people should be shot.”

Daniel Datzer another flight attendant wrote, “I do not respect the 51 percent…… And I NEVER will…. Clowns, fools, morons… This will drastically come back to bite them in their uneducated, bilious, petty, small-minded, redneck lazy tired asses…. I will NEVER stop asking how people voted each time I fly and they will be treated accordingly… This is not a joke…. My anger and deep seated frustration WILL have a place to go… Directly at the enemy. I will maintain the level of professionalism that I have for myself…. But make no mistake…. They will know my discontent and pure disgust at their selfish inhumane actions… And it will NOT be cozy for them….I have this fantasy where the 49 percent goes off and forms its own base…… Because frankly, that is the only way the 51% are going to be able to escape what is coming.”

Victor Dunson wrote, “this is war… If you f**k with my friends you f**k with me and I don’t like being f**ked with: (.”

Judge Robreno also contended in his ruling that “Datzer used coarse sexual language” but that it “does not amount to severe or pervasive sexual harassment.” a picture of a “bedazzled vagina,” repeatedly used the word “c**t,” called a coworker a “sow,” referred to coworkers as “harpies and shrews,” and wrote “have any of them LOOKED in a mirror? Tuck your shirt in fat ass… Fix your hair… How bout a tie? A little lipstick?”

AMERICAN DID NOT LIFT A FINGER

Ana Burke-Leon, AA Human Resources

Despite the legal ruling, according to its policies, US Airways / American Airlines failed to follow its own rules and did not investigate multiple complaints brought to Human Resources by many women. Ana Burke-Leon, AA Human Resource Specialist, tasked with examining Chinery and Medlin’s claims states in her deposition, “Discrimination, unlawful harassment and retaliation in the workplace will not be tolerated.”  She stated the policy included derogatory posts, jokes, letters, e-mail or graffiti that denigrate or show hostility toward an individual or group based on but not limited to race, color, religion, gender, or gender identity.

FROM THE DEPOSITION OF AMERICAN’S HUMAN RESOURCE SPECIALIST, ANA BURKE-LEON

If ever there was an instance to back up employee mistrust in human resource departments, the responses given by American’s HR representative to questions from the plaintiff’s attorney would justify their suspicions.

In her deposition, Burke-Leon repeatedly evades the questions brought forth by Chinery and Medlin’s counsel about whether or not the “c-word,” when used by a male employee to refer to a female employee, would be tolerated:

 Q. Do you consider the word, the use of the C-U-N-T to be an epithet, derogatory comment or slur?

A. Yes.

Q. What’s your understanding as to what that word means?

A. It’s a derogatory word used to describe a female.

Q. So if a male employee refers to a female employee as —

A. You can say it. I understand.

Q. I will say the “C” word. If a male employee refers to a female employee as the “C” word, does that fall within these bullet points list of the type of conduct that will not be tolerated?

A. It will depend on the context. It would depend on if it’s directly related or specific name, a person is involved. It will depend on the context.

Q. If a male employee refers to a female employee as the “C” word, do you consider that to be a derogatory comment?

A. It depends on the way it’s stated. It depends on the content. It depends on the content.

Q. Do you consider a male employee referring to a female employee as the “C” word to be a slur?

A. A slur? I don’t know.

Ana Burke-Leon was tasked with interviewing one of the men named in the lawsuit but in her deposition says she did not because on the scheduled day of her flight to meet him, she “went to the wrong gate” and missed the flight. The matter was later looked into by another member of HR. Burke-Leon went on to say, “Daniel stated that his Facebook page was compromised and that he does not believe he made those comments.”

Another senior Human Resource investigator, Dan Cleverly, admitted under oath that he did not-at-all investigate Medlin’s harassment complaints and concerns. She repeatedly emailed him requesting assistance but was ignored.  When questioned, Cleverly’s response in his deposition was “Because it got lost in my shuffle.” That was towards the end of October. I went on vacation, Thanksgiving, Christmas crazy.”  The evidence provided by American Airlines revealed Cleverly’s apparent bias from personal notes to Burke-Leon where he referred to Chinery as “exhibiting a whole new side of crazy” when she attempted to follow up with him about her concerns. His response, when asked why he said that was “Because this was an overwhelming time.”

The harassment claims brought forth against Jim Brown, to this day, have not been investigated by American Airlines. In his testimony, Brown states he has not had any interviews regarding the complaints made against him. At least four women complained to HR about Brown’s harassment. The outcomes of such investigations would determine whether or not there would be disciplinary action, and, according to AA’s policies, if an employee were in violation, it “would not be tolerated.” How is it possible that American Airlines, for years, has ignored women who came forward to complain along with those who provided affidavits testifying that they witnessed harassment by Brown?

The complaints against Brown, Datzer, Allen, and others, date back to 2012 and continue through 2016.  Despite the claims, since that time, three of the men have been promoted to various positions that include lucrative “special projects” committee work and training positions. Flight attendants are required to requalify annually in training to ensure he or she meets the FAA and company requirements to maintain continued employment. Both women have feared retaliation and for their jobs as the men they have accused of harassment have been placed in positions of authority where they potentially can pass or fail them.

AN APPEAL MAY BE FORTHCOMING

“American offered me a monetary settlement, but this has never been about money. It’s about employees suffering when policies created to protect them are ignored or selectively enforced by the company. These colleagues should be held to the same accountability that everyone else is held to. People should never be rewarded for engaging in workplace bullying and harassment” says Chinery.

Reasoned Voting

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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Keeping in mind that this site does not engage in party politics, I still feel prompted to share something in the context of the up-coming election in the U.S. Although most of this will discuss the political climate in the U.S. I also send this out to any readers “across the pond” in the U.K. as they approach the very important vote on whether or not to remain in the E.U. Distributism is based on certain philosophical principles which originate in a scientific view of philosophy. It has become all too common in our political environments to use fear tactics to try and convince people to vote a certain way. These tactics can sound reasonable, but are truly an attempt to get you to abandon reason. Therefore, I want to present certain principles of reason as I think they apply to deciding how to vote.

The philosophical principles of reason which come down to us from the great minds of the past like Aristotle and Saint Thomas Aquinas are those precepts which we must follow when applying reason to anything. The failure to do so will ultimately lead us to accepting absurd things. They are employed by all of our natural sciences. They are employed by all of our ethical reasoning. They are crucial to fulfilling our capabilities as rational beings. Unfortunately, some people throw around some of these principles in an incorrect or incomplete manner. Because we no longer learn true philosophy (even philosophy students seem to spend more time learning about philosophers – both good and bad – than about the actual science of philosophy) many people are ill equipped to see that these are false applications.

“Choosing the lesser of two evils”

This is a frequent claim used as an election draws near. In the U.S. It has long been used by pundits for the Republican party and has recently been used more by those of the Democrat party. The failure to nominate a candidate their voting base can really support has forced them to use this claim. They essentially say, “we know you think our candidate is bad, but he’s not as bad as their candidate.” This call to choose the “lesser” of two evils is usually followed by the next claim.

“A vote for x is really a vote for y”

This is a double-attack on your reason. Not only is your decision not to vote for their candidate or policy wrong, but you will somehow be guilty for the fact that the other candidate or policy won. In essence, the claim is that by voting other than the way they want, you are actually choosing what (presumably) neither of you want. This is used by both of the major parties in the U.S. as an attack against anyone who considers a third party option. It is based on the premise that the candidate or policy you want has no chance of winning, which leads us to the next claim.

“Don’t let the best be the enemy of the good”

Politics is the art of compromise, so why don’t you just compromise and vote for us? Since your position or candidate has no chance of actually winning, you should back down a little and vote for us. By doing so, you’ll get at least some of what you want instead of “wasting your vote.”

All of these arguments sound reasonable, but are actually not so, and a serious look at the principles of reason will reveal why.

When people use variants of the “lesser of two evils” argument, keep in mind that this is only a partial statement of the actual principle of reason. The actual principle is, “If one cannot avoid doing one of two acts, from both of which will follow an evil effect, one is obligated to choose the lesser of the two evils.”  Note that the premise here, which is fundamental to the entire principle, is that you cannot avoid doing one of the two acts. For this to apply in the context of an election, you would have to be constrained to only choose one of two candidates and have no other option – you must vote and you must vote for one of the only two candidates presented to you. Is this the actual case in our elections? Do you really only have two choices? I am not speaking of the so-called “practical” choices, by which is meant those choices generally accepted as having a chance to win. If there is in fact another option, then you are not limited by the constraint of the principle, so it simply doesn’t apply. Actually, if one were to insist on applying it to the case of an election, a reasoned expansion of this principle would be that, in the case of more than two choices, you must choose the one from which will follow the least evil effect. Don’t forget that, when electing candidates in the U.S., there is usually a blank line where you can write in the name of a better choice than the ones being presented.

This leads us to the next claim. Is it true that choosing something other than the two “practical” choices is equivalent to choosing one of them? The answer is obviously no. They say that the only choices are A and B because C has no chance of winning. Therefore, if you vote for C, you are effectively giving the election to whichever option they don’t want from the choices of A and B. This is nonsense. They are trying to shift the blame to you for the fact that they didn’t present a candidate you would want to support. They are trying to blame you for all the others who also didn’t want to support their view. This seems to be a mangling of the principle which states, “Things that are identical with a third are identical with each other.”Your actual responsibility in an election is to vote for the candidate or position you think should win. What you vote for represents what you choose regardless of the outcome. You are not to blame for the votes of others.

This leaves us with the only argument that actually deserves any consideration. “Don’t let the best become the enemy of the good” is inherently incorrect, but it can actually be applied in a way that doesn’t compromise the principles of reason. However, this argument must be properly understood in the light of those principles to determine if it actually applies to the current choices.

First of all, using the terms employed, the “good” must always be directed toward the “best” or it fails to be good. (“Every agent acts for the sake of an end.”) Therefore, one can accept the merely “good” for now, but only on the condition that is a movement toward the “best.” If this is not the case, then you would be violating the principle which states, “It is never lawful to reject a greater good for a lesser one.” The lesser good can only be accepted as a means to achieving the greater good, and never as an end itself. This is the essence of political compromise. Realizing that achieving the “best” may not currently be politically possible, achieving the “good” at this time with the intention of continuing to work for the “best” may be prudent.

Another consideration for this argument must be kept in mind. At what point does continual compromise from the “best” end up being an acceptance of the merely “good?” If you keep voting for an inadequate candidate on the grounds that “we can’t let the other party win,” what incentive will your party ever have to stop presenting inadequate candidates? If you continue to agree to legislation that falls short of what you really want, what are your chances of ever getting the legislation you really want? The pundits accuse those who choose to make a stand with their vote of wasting it, but the purpose of voting is to try and get the change you want. What vote could be more wasted than when you vote for something you don’t want?

At what point do we wake up to the realization that the political machines of these parties are actively engaged in saying what their base wants to hear just to secure votes, but don’t actually mean those things? How many times to we have to see them fail to even try to accomplish what they tell us they will before we accept the fact that it really isn’t all the fault of the other party? Remember that this sort of compromise is only acceptable if it is both prudential and will actually help to move from the “good” to the “best.”

A final consideration on this kind of compromise is that we have to examine the risks of the other side of the compromise. It is not enough to look at what we’ve gained, we need to look at what we’ve potentially lost through the compromise.“It is never lawful to take a risk with the right of another.” “It is never lawful to do an evil act to accomplish a good end.” “A good intention does not justify the use of an evil means for the end in view.” If your side of the compromise would fall into any of these categories, then the compromise cannot be made. Remember that your vote represents you. Your beliefs and values. “All human acts must tend towards the good of man.”

I am also reminded of something posted by Ryan Grant. There is another claim that says that you have no right to complain if you don’t vote. Of course, this is also nonsense. The officials of government have a moral responsibility in the exercise of their office. This is true even if those officials are not democratically elected. Citizens always have the right to complain about injustices regardless of how those officials came to hold their offices. In some election campaigns, there were movements of people who wanted a ballot option for “none of the above” as a way of indicating their dissatisfaction with all of the candidates. However, if you believe that elections are useless, because of the corruption of the political parties, the media, the voting process, or the ballot counting process, then why should you bother to vote even to say “none of the above?” Justice in government is a human right, not one just for those who engage in the system of voting.

Finally, I would like to point out how ironic it is when I hear Republican pundits heap scorn on those who would even consider a third party candidate. They seem to forget that their party was once the upstart third party in a political climate dominated by two other parties. The “Grand Old Party” is significantly younger than its chief rival. Why is it that they don’t address the growing popularity of third party candidates among their voter base? The Republican party was propelled to electoral victory because the voting public got sick and tired of the fact that neither of the major parties of the time were putting forth candidates and positions that truly reflected their views. Well, the same thing is happening today in both of the major parties. It is common for pundits of both parties to lay the blame for an electoral loss on the votes “stolen” by a third party candidate. The truth is that these votes were not stolen because they didn’t “belong” to any candidate or party. They never “owned” our votes and they shouldn’t take them for granted. If they want our votes, then they should present candidates and positions we want to support. If they want to keep our votes, then those candidates better use their time in office actually trying to accomplish what they were elected to accomplish. In other words, voters need to remember that parties and individual candidates need to earn our votes, and need to keep doing so. If they fail to do this, then why shouldn’t we look elsewhere and be proud of doing so?

In their attempts to convince others to vote for a particular candidate, many people are using arguments that invoke the fundamental principles of reason from the philosophical sciences. Unfortunately, many of these invocations use these arguments in an improper way. I addressed some of the most common in a recent article titled Reasoned Voting. I recently came across another use of a principle of reason in support of voting for a particular candidate which, in the interest clear reasoning, I would like to address in this follow-up to that article. The principle is known as “Double-Effect.”

The main goal of these articles is not to convince or dissuade people about voting for a particular candidate or party. It is to foster a better understanding of the principles being invoked because an improper use of these principles can have bad results.

“A small error in principle can lead to a big error in conclusion.”

Doing something, even something good, for a bad reason is not something we should be willing to accept because that would be acting contrary to our nature as rational beings. Therefore, even if you continue to support a given candidate, it should not be because of a faulty application of the principles of reason.

Where the principle commonly called “the lesser of two evils” is used to decide between two choices, the principle of double-effect only applies to a single choice. It is the method used to determine if a particular choice can or cannot be made. Thus, we have seen questions like “can a Catholic vote for Trump/Hillary?” Some commentators have attempted to answer these types of questions pertaining to the upcoming election using the principle of double-effect, but I believe these attempts are a misapplication of the principle.

The principle of double-effect answers the question of whether or not a specific single act is permissible when it is known that the act will produce not only a good, but also a bad effect. In the context of the political election it is proposed that, because we know a candidate will do both good and bad things, double-effect applies to the question of whether or not we may vote for a specific candidate. However, I believe that this is a misunderstanding of the principle as it applies to the question at hand.

The principle of double-effect addresses the following question.

Given an act that that produces two effects, one good and one bad, can we do the act?

 

To determine whether or not a particular act is permissible, the principle of double-effect applies four conditions to the act and its effects to arrive at an answer. If all of the conditions are met, then the principle of double-effect applies and the act may be done. The conditions which must be met for double-effect to apply are these.

 

The act itself must be good, or at least indifferent.
Both effects must proceed immediately from the act.
Only the good effect may be intended.
There must be due proportion between the good and bad effects.

The first two conditions determine whether or not double-effect applies to a particular act. If not, the act must be examined in light of other principles of reason. The second two conditions answer the question of whether or not an act to which double-effect does apply may or may not be done.

A fairly common example of how the principle is legitimately applied is the question amputating a limb infected with gangrene. Amputating the infected limb will remove the threat to life, but it will also result in the loss of the limb. Can we amputate the limb?

First: The act is amputation of the limb. This act is indifferent because the goodness or badness of it depends on the end toward which it is directed.
Second: Both effects will proceed immediately from the act. The moment the act is performed, both the threat to life and the limb will be removed.
Third: We only desire the good effect. If we could remove the gangrene without doing harm, or with less harm, we would do so.
Fourth: The good of preserving life is greater than the evil of losing a limb.

From this we can see that the principle of double-effect applies to this case, and that the reasonable conclusion is that we may amputate the limb.

Those who attempt to apply this principle as an argument for casting your vote for candidate X seem to do so on the basis of campaign promises. Even though it is likely that X will do some things we consider bad, X has promised to do other things we believe are good. We believe there is due proportion between the good and the bad that X will likely do while in office. Therefore, they conclude, the principle of double-effect shows that we can vote for candidate X. I will explain two reasons why I believe double-effect just doesn’t apply to the question of your vote. Note that I am only addressing the question of whether or not double-effect applies to the question of your vote, there are certainly other factors that do.

Double-effect applies specifically to “an act that produces two effects, one good and one bad.” We are examining the effects of specific individual act, so the act in question must clearly be the cause of those effects. In the case of amputation, both effects are produced by the act of amputation – they are both unavoidable effects of the act and the act is clearly the cause of those effects. Can we say the same thing about your vote? Is your vote the cause of both the good and the bad that candidate X will do while in office? The answer is obviously no. You cast your vote based on various things like campaign promises and position statements, but your vote does not actually cause any of those things to actually occur. Whether candidate X keeps or breaks every campaign promise, whether X does exactly what you expect or the opposite of what you expect can not reasonably be attributed as an effect of your vote. It is an effect of the free will of the candidate while in office.

I know that some will argue that your vote is the cause of the candidate getting elected and therefore, by extension, it is the cause of what the candidate does in office. I maintain that double-effect still doesn’t apply even if we accept the argument. The principle of double-effect states that both effects must proceed immediatelyfrom the act. This is clear in the case of amputation. Both effects are immediate. They happen simultaneously and there is no delay between the act as the cause and its effects. In regard to your vote, none of the effects can be considered to proceed immediately from your vote. Even if we were to say that the effects in question will take place over a period of time, they don’t even start to happen when you cast your vote. The candidate won’t even get sworn in for two months after you cast your vote. X could refuse to be sworn in or die before doing so. Amputation guarantees that both the limb and the disease will be removed. Your vote does not even guarantee that candidate X will win the election. Clearly, double-effect does not apply to the question of your vote.

In the end, as stated in the previous article, you must exercise your prudential judgement. Faced with the fact that the candidate is not ideal, is it prudential to vote for X rather than one of the several other available candidates? Is it prudential to (once again) compromise on what you really want and vote for X as a step toward a greater good to be more fully achieved in the future? There are many factors to consider for this important decision. I hope that these articles will help clarify the good and bad points some are making on the subject. These decisions are unfortunately difficult and complex. The principles of reason exist to assist us in understanding the factors that go into making a good decision. It does not help if our thinking gets muddled by the improper application of these principles, even if those doing it have the best intentions.

Originally posted on June 16, 2016 (part one: see here) and August 18, 2016 (part two: see here).

The Democrats Abandon Catholics

If you value religious education or life’s sanctity, you’re not welcome in the party.

Last Saturday’s feast of St. Patrick, the patron saint of our cathedral and archdiocese, reminded me of Archbishop John Hughes. As the first archbishop of New York (1842-64), “Dagger John” displayed dramatic reverence for the dignity of Irish immigrants. Thousands arrived daily in New York—penniless, starving and sometimes ill—only to be met with hostility, bigotry and injustice.

An immigrant himself, Hughes prophetically and vigorously defended their dignity. Because the schools at the time were hostile to these immigrants, he initiated Catholic schools to provide children with a good education sensitive to their religion and to prepare them as responsible, patriotic citizens. The schools worked. Many remain open to this day, their mission unchanged.

The second event was the recent funeral of a great African-American woman, Dolores Grier. A convert to Catholicism, she was named vice chancellor of the archdiocese three decades ago by Cardinal John O’Connor; she was the first layperson and first woman to hold the prestigious position. Grier was passionate about civil rights, especially the right to life of babies in the womb. She never missed an opportunity to defend, lovingly but forcefully, their right to life.

Grier attributed her pro-life sensitivity to the Rev. Jesse Jackson, who preached that abortion was an act of genocide against minorities. No wonder, she often observed, abortuaries were clustered in poor black and brown neighborhoods. The statistics today confirm her observation: In 2013 there were more black babies aborted in New York City (29,007) than were born here (24,758), according to a report from the New York City Department of Health and Mental Hygiene.

The values Archbishop Hughes and Dolores Grier cherished—the dignity and sanctity of human life, the importance of Catholic schools, the defense of a baby’s civil rights—were, and still are, widely embraced by Catholics. This often led Catholics to become loyal Democrats. I remember my own grandmother whispering to me, “We Catholics don’t trust those Republicans.”

Such is no longer the case, a cause of sadness to many Catholics, me included. The two causes so vigorously promoted by Hughes and Grier—the needs of poor and middle-class children in Catholic schools, and the right to life of the baby in the womb—largely have been rejected by the party of our youth. An esteemed pro-life Democrat in Illinois, Rep. Dan Lipinski, effectively was blacklisted by his own party. Last year, Democratic National Committee Chairman Tom Perez insisted that pro-life candidates have no place in the modern Democratic Party.

It is particularly chilly for us here in the state Hughes and Grier proudly called their earthly home. In recent years, some Democrats in the New York state Assembly repeatedly blocked education tax credit legislation, which would have helped middle-class and low-income families make the choice to select Catholic or other nonpublic schools for their children. Opposing the bill reduces the ability of fine Catholic schools across the state to continue their mission of serving the poor, many of them immigrants.

More sobering, what is already the most radical abortion license in the country may soon be even more morbidly expanded. For instance, under the proposed Reproductive Health Act, doctors would not be required to care for a baby who survives an abortion. The newborn simply would be allowed to die without any legal implications. And abortions would be legal up to the moment of birth.

I’m a pastor, not a politician, and I’ve certainly had spats and disappointments with politicians from both of America’s leading parties. But it saddens me, and weakens the democracy millions of Americans cherish, when the party that once embraced Catholics now slams the door on us.

To Archbishop Hughes, Dolores Grier, and Grandma Dolan, I’m sorry to have to write this. But not as sad as you are to know it is true.

Cardinal Dolan is archbishop of New York.

Appeared in the March 22, 2018, print edition of The Wall Street Journal and can be found here.

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